Boston Lawyer Blog

Will the NLRB Decision Allowing Secret Recording in the Workplace Affect Massachusetts Workers?

Published on: January 11, 2016 | by Naomi Shatz

This is the second in our series of posts about the NLRB’s recent decision regarding employees recording in the workplace. For Part 1 of this series, click here.

As we previously discussed, the NLRB just decided that employers cannot make a blanket ban on employees making recordings or taking photographs in the workplace. As the NLRB explained in its decision, Section 7 of the NLRA grants employees the right to join together to advance their interests, and at least some employee recordings are protected under that provision. Our previous post on this case discussed the likely consequences of the decision for companies in states where such recordings are otherwise legal. But what about states like Massachusetts, or Illinois, where this case originated, that require all parties to a conversation to consent to it being recorded? Can employees in those states rely on the NLRB decision to assert that they have a right to record workplace conversations, even though those same conversations could not be recorded outside the workplace?

Massachusetts law (M.G.L. c. 272, § 99) requires that all parties to a conversation consent before that conversation is audio recorded. The law has its limits. It does not prohibit video recordings that record audio, and it does not prohibit the covert taking of photographs (so long as those photographs are not of naked people in places where they have a reasonable expectation of privacy). In other words, the NRLB’s decision means that employers cannot prohibit the taking of recordings and photographs that are part of the employees’ exercise of their Section 7 rights under the NLRA; and Massachusetts law doesn’t create an additional barrier for employees who want to take non-sound video recordings or photographs in their work place.

What Does the NLRB Decision in the Whole Foods Case Mean for Recording in the Workplace?

Published on: January 8, 2016 | by Naomi Shatz

Whole Foods, a major grocery store chain, has a company-wide policy that prohibits its employees from making any recording—audio or video—and from taking any photographs in any area of a Whole Foods store. But a recent decision by the National Labor Relations Board (NLRB) might require Whole Foods to make serious changes to its policy, in order to make sure that it isn’t trampling on employee rights under the federal National Labor Relations Act (NLRA). We are discussing the impact of this decision in two posts. This post explains the NLRB’s decision and what it may mean for employees in states where no other law prohibits such recordings. For Part Two of this series, click here.

The NLRB is the body tasked with interpreting the NLRA. And it recently sided with the employees who challenged Whole Foods’ policy on recordings. It determined that the policy violated the Act because it interfered with employees’ rights under Section 7 of the Act, which grants employees the right to join together to advance their interests. The NLRB appeared to concede that the Whole Foods rule did not explicitly restrict activities protected by Section 7 of the NLRA, but held that employees would reasonably construe the rules to prohibit protected activity and would create a chilling effect on employees’ exercise of their rights. In other words, employees would opt not to exercise their protected rights for fear of violating the overbroad recording policy.

Cosby Prosecution for Sexual Assault Shows Shift in Attitudes

Published on: December 31, 2015 | by Ruth O'Meara-Costello

Nearly 12 years after Bill Cosby allegedly drugged and sexually assaulted Andrea Constand, his arrest in Pennsylvania on a charge of aggravated indecent assault subjects him to the possibility of criminal penalties for the first time. One reason that the prosecution is happening now is simple—this is prosecutors’ last opportunity to charge Cosby before the statute of limitations expires. But in 2005, when memories and evidence were relatively fresh, prosecutors chose not to pursue charges. The change was undoubtedly prompted in part by the enormous number of women who have now accused Cosby of similar conduct, but may also indicate a more general shift in attitudes about rape and sexual assault. While it is too early to say whether it will break any new legal ground, the case is now taking place in a historical moment when questions about intoxication and consent to intoxication are hotly contested.

In 2005, then-Montgomery County District Attorney Bruce Castor declined to prosecute Cosby, citing “insufficient credible and admissible evidence.” With the exception of statements in depositions conducted in Constand’s civil lawsuit against Cosby, though, the bulk of the information contained in the Affidavit of Probable Cause supporting issuance of a warrant for Cosby’s arrest was known to authorities in 2005. Constand’s account is essentially that Cosby offered her pills to help her relax; that after she took the pills and drank some wine which Cosby pressed upon her she began experiencing blurred vision and difficulty speaking; and that Cosby then told her to lie down, assisted her to the couch, positioned himself behind her, and then touched her sexually, including penetrating her with his fingers. According to the affidavit, Cosby was questioned in 2005 about these allegations and agreed that he had given Constand pills when she complained of tension and inability to sleep (he claimed that they were Benedryl, which he agreed made him go to sleep right away when he took it); that he had not told her what the pills were; that he had engaged in sexual activity with her; and that when Constand’s mother confronted him about his actions he offered to pay for Constand to go to graduate school. Constand’s mother also spoke with police and stated that Cosby had told her that he gave Constand prescription pills and would mail her the name of the pills. Cosby nonetheless claimed that his activity with Constand was consensual, and prosecutors declined to charge him.

The “Cannibal Cop” Case: A Study in the Sweep of the Computer Fraud and Abuse Act

Published on: December 7, 2015 | by David Russcol

On December 3, 2015, a divided panel of the Second Circuit Court of Appeals cleared Gilberto Valle, sensationally dubbed the “Cannibal Cop” by some in the media, of the two charges against him, conspiracy to commit kidnapping and a violation of the Computer Fraud and Abuse Act (CFAA). Although the kidnapping charge is certainly more lurid, the CFAA charge has wider implications for online freedom of speech and action, and highlights a division in the courts between those that interpret the law as making many if not most Internet users into federal criminals, and those that take a narrower view of the CFAA.

According to the court’s opinion, Valle was a New York City police officer with a penchant for spending time late at night in unusual corners of the Internet. Specifically, he was constructing elaborate fantasies with other users on a fetish forum in which they would kidnap, assault, kill, and eat various women with whom Valle was acquainted. These fantasies sometimes included some real information about the women (including their real pictures and at least partial real names) but also false or outlandish information about them or Valle, such as Valle’s claim to have an isolated cabin in the woods with a human-sized oven. The extent to which some of these fantasies might have crossed over into serious agreements or plans was the basis of the kidnapping conspiracy charge.

Chism Murder Trial Raises Unsettling Questions Regarding Competency to Stand Trial

Published on: December 1, 2015 | by Ruth O'Meara-Costello

The ongoing trial of Philip Chism, which resumed yesterday following the Thanksgiving holiday, presents an unusual and disturbing set of issues in view of the terrible nature of the defendant’s actions, his extreme youth, and his apparently very serious mental illness. First, the events at issue are undeniably horrifying; Chism admittedly raped and killed his teacher, who was by all accounts a wonderful person and whose death was a tremendous loss. (Beyond that, I won’t recount the details here, but they have been set forth at length in the press.) Second, Chism, who was 14 years old when he killed his teacher, is being tried as an adult, which he undeniably is not and was not at the time of the crime; as Northeastern University law professor Daniel Medwed has written, treating children as adults is problematic regardless of how horrifying their actions are. And finally, Chism, who is now 16 years old, has exhibited signs of significant mental illness during his trial, repeatedly raising a question about whether he is actually competent to stand trial.

Chism’s trial was delayed so that his competency could be evaluated after he said during jury selection that he wished to be shot in the courtroom and claiming that voices told him not to trust his attorneys. The trial judge concluded, following that evaluation, that he was competent, and the case has moved forward. Chism is not currently contesting his competency to stand trial, despite a breakdown on the second day of his trial in which he refused to return to the courtroom, telling his defense counsel while shaking, twitching, and mumbling that he was “about to explode” and didn’t want to hurt anyone. The case thus sheds light on the difficult questions that arise when the criminal justice system must handle serious mental illness or disability.

Warrants May Not Be Enough to Make Stingrays Lawful Under the Fourth Amendment

Published on: November 10, 2015 | by Zalkind Duncan & Bernstein LLP

As I discussed in my last post, the U.S. Department of Justice recently published a new policy that generally requires federal law enforcement agencies to obtain a search warrant before using a cell-site simulator device, otherwise known as a stingray. But the policy itself does not create grounds for someone to bring a lawsuit for improper use of a cell-site simulator. People will have to look to the courts, and to the protections against unreasonable search and seizure offered by the Fourth Amendment and by individual state constitutions. While warrantless use of cell-site simulators likely violates the Fourth Amendment, it may be that even warrant-based searches inherently violate our constitutional Fourth Amendment right against unlawful searches because such warrants are, necessarily, general warrants that have long been prohibited.

The Fourth Amendment protects people from unreasonable searches and seizures. Typically, a person’s body, home, and belongings cannot be searched unless the government has first obtained a warrant from the court. The warrant has to be supported by probable cause—in other words, a particular and reasonable basis for believing that a crime was committed, and that a search will turn up evidence of that crime. Of course, Fourth Amendment protections are more complicated than that. For one thing, a person can be subject to a brief seizure and search if a law enforcement officer has “reasonable suspicion” that the person has or is about to commit a crime, or that the person has a weapon on them or in their vehicle. For another thing, law enforcement can use the “exigent circumstances” exception to conduct a search without a warrant, when they think they will not have time to get one. In practice, these exceptions can be abused, sometimes systematically and discriminatorily, by law enforcement (my colleague has discussed this here; the report on stop and frisk practices in Massachusetts, published by ACLU Massachusetts, provides additional insight into the issue). But the Fourth Amendment—and similar rights afforded by state constitutions—continues to be a valuable protection against unreasonable searches and seizures.

Federal Court Invites Further Briefing on Whether the Death Penalty Is Constitutional

Published on: November 6, 2015 | by Emma Quinn-Judge

Last week, a Massachusetts federal trial court opened the door to a direct constitutional challenge to the death penalty. “The court remains concerned,” Judge Mark L. Wolf wrote, “about the potential rate of error in federal capital cases generally and the risk of the execution of the innocent particularly.” The court therefore invited defense counsel to submit a “future, focused presentation” on whether the rate of error renders the death penalty unconstitutional.

This invitation to challenge the death penalty came in United States v. Sampson, the long-running federal death penalty prosecution of Gary Lee Sampson. Sampson was indicted in 2001 after three separate incidents in which he murdered three individuals and stole or attempted to steal their cars. He was charged federally for carjacking resulting in the deaths of two of the individuals, those killed in Massachusetts. He pled guilty in 2003 and was subsequently sentenced to death by a federal jury. That sentence was vacated in 2011 due to juror misconduct, and Sampson is now awaiting a new penalty-phase trial to determine his sentence. Last year, Sampson filed twenty-six motions raising constitutional issues, and on October 28, 2015, the trial court issued an 89-page decision denying all of Sampson’s motions.

Bad Facts, Bad Law: Appeals Court Ignores Free Speech in Upholding Anti-Harassment Order

Published on: October 23, 2015 | by David Russcol

We have previously covered on this blog the developing case law interpreting the Massachusetts law governing harassment prevention orders. To recap, the statute allows an individual suffering from a pattern of “harassment,” meeting certain requirements, to obtain a restraining order against the harasser. Because “harassment” could be a broad, almost limitless category, the Legislature defined it in the statute to include “3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property.” The Supreme Judicial Court clarified in O’Brien v. Borowski that, not only does a plaintiff need to prove three acts, but where speech or expression is involved, it must be in a category deemed unprotected by the First Amendment, such as “fighting words” or “true threats.”

In the recent case of A.T. v. C.R., a majority of the Appeals Court focused on the unsavory facts of the case before it, and lost sight of the broader principles of the First Amendment. In A.T., an eleven-year-old boy acted in a boorish and offensive manner towards one of his peers, an eleven-year-old girl. The incidents at issue were the following:

While video-chatting, the boy commented on the girl’s “jugs of milk” (meaning her breasts). A friend of his recorded a video of the conversation and sent it to her.
The boy told the girl that, if she showed the video to anyone, he would “make her life a living hell.”
In the school cafeteria, the boy described (or helped a friend describe) his sexual fantasy involving the girl, in which she was a pizza delivery girl.
Some time later, after he had withdrawn from the school, the boy approached the girl and said he wanted to “punch [her] in the titties.”

California Governor’s Veto of Bill Mandating Penalties for Campus Sexual Assault Allows Colleges to Exercise Discretion

Published on: October 15, 2015 | by Ruth O'Meara-Costello

A complex patchwork of federal laws, regulations, and both binding and non-binding “guidance” issued by federal agencies governs how colleges respond to allegations of sexual harassment or sexual assault on campus. Compliance with these laws is often a challenge for colleges, which have to respond to the federal government’s increasingly specific demands regarding the contents of their policies and conduct of adjudications in this area. From my perspective as a lawyer whose most frequent involvement in such campus proceedings is as an advocate for accused students and faculty, it often seems that the laws that govern in this area are becoming increasingly complex and yet no better able to deal effectively or appropriately with the complexity of real human relationships and interactions. I firmly share the goal of reducing sexual assault on college campuses and elsewhere, but believe that legislation should be carefully evaluated with an eye to its likely real-life consequences for students, whether complainants or respondents.

That is why, as states begin to legislate more frequently in this area, California Governor Jerry Brown’s veto of one proposed law was a refreshingly common sense choice. The bill would have required colleges to dole out at least a two year suspension to any student found responsible for a sexual assault of any kind. That requirement quickly prompts the question of how “sexual assault” is defined, and there the legislation provided little help, stating: “For purposes of this section, ‘sexual assault’ includes, but is not limited to, rape, forced sodomy, forced oral copulation, rape by a foreign object, sexual battery, or a threat of sexual assault involving a student, whether on or off campus.” That definition is incredibly poorly drafted; it is common sense that sexual assault would include the listed crimes, but by stating that it is “not limited to” those crimes, legislators left open the possibility that the definition could be wide enough to sweep up extensive conduct that most people would not consider so severe as to warrant a two year suspension from college, with its attendant loss of financial aid and removal from school housing.

DOJ Takes Necessary, But Not Yet Sufficient, Steps to Safeguard People from Warrantless Use of Cell-Site Simulator Technology

Published on: October 6, 2015 | by Zalkind Duncan & Bernstein LLP

Last month, The U.S. Department of Justice announced that it was implementing a new policy to govern the use of cell-site simulator technology, known also as “stingrays,” by federal law enforcement. The policy, available here, is intended to better protect suspects in criminal investigations and bystanders from intrusive, warrantless searches of data collected from their cellular phones.

A stingray is a small device—easily transportable in a car or even on someone’s person—that operates as a portable cell tower. Its signal reaches cell phones and other electronic devices in the area, which in turn transmit information through the stingray instead of through a proper cellular tower. The stingray can obtain information from all devices in the area, even those that are not in use. The problem is that the stingray is not owned or operated by a phone company. It’s owned and operated by the government, and law enforcement will collect and retain location and other identifying information from devices in range of the stingray. A police car that contains a stingray can drive down a road, or stop at a busy intersection, and collect data from electronic devices, without the owners of those devices having any idea that it is happening. The stingray works through walls, which means it can collect data from inside businesses and homes, and can accurately and precisely determine someone’s location. Even when the aim is to collect data from a specific person’s phone, it will also pick up data from bystanders who happen to be in the wrong place at the wrong time: that is, being in the vicinity of a law enforcement officer with a stingray. A stingray has other nasty side effects, too, including by draining device batteries by forcing them to transmit data even when they are not in use, and by disrupting cellular service to the area.